This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
(e) R. v. Clinton, (1869) I. R. 4 C. L. 6.
The periods respectively for which a vendor, in order to show a title under the Act, must prove uninterrupted enjoyment, are as follows: in the case of lights, twenty years give an absolute title; in the case of easements other than light, twenty years; and in the case of profits a prendre, thirty years, give a right which cannot be defeated by showing that the easement or profit was first enjoyed at some time prior to such respective periods; and forty years, in the case of easements (other than light, for which there is only, the one period of twenty years), or sixty years in the case of profits a prendre, gives, in each case, an indefeasible title, unless it appears that the enjoyment was by consent or agreement expressly given or made by deed or writing. But in the case of rights of way or watercourses, where the servient tenement has been held for life, or for any term exceeding three years, the reversioner, notwithstanding the expiration of the forty years, has a period of three years from the determination of the particular estate in which to resist the claim (g); and as regards the prima facie title which is gained by a thirty lor twenty years' enjoyment under ss. 1 and 2 of the Act, the time during which there may have been any disability, or a subsisting life estate, is excluded by s. 7.
Period for which possession must be proved in evidence of title.
In all the above cases (including that of a claim to light (h)), the enjoyment must have been uninterrupted (i), "as of right" (k); and must have been subsisting within, at most, a year before the commencement of the action in which it is relied on (l). The right to an easement under the Act by reason of enjoyment for twenty years is only inchoate until established in legal proceedings. "The dominant owner of the dominant tenement after twenty years' uninterrupted enjoyment is in a position to avail himself of the Act if his claim is brought into question. But in the meantime, however long the enjoyment may have been, his right is just the same as if the Act had never been passed" (m). The claim therefore may be defeated by showing that for the whole or a part of the period relied on the enjoyment was by parol licence, or was exercised by stealth, or without the knowledge of the parties interested in opposing the claim (n), or was only exercised at long intervals for a particular purpose (o), or on sufferance (p), or that the party exercising it was himself, during all or any part of such period, entitled to the possession of the property sought to be affected (q).
Enjoyment must have been uninterrupted and as of right.
(f) Brew v. Haren, (1877) I. R. 11 C. L. 198.
(g) S. 8. See Balk v. Skinner, (1852) 18 Q. B. 568; 22 L. J. Q. B. 27; Kilgour v. Gaddes, (1903) 89 L. T. 444; and see Laird v. Briggt. (1881) 19 Ch. D. 22, 33; 45 L. T. 238; per Jessel, M. R.
(h) Hyman v. Van Den Bergh, 1907, 2 Ch. 516; 1908, 1 Ch. 167.
(i) Onley v. Gardiner, (1838) 4 M. & W. 500; 1 H. & II. 381.
(k) See Beeston v. Weate, (1856) 5 E. & B. 986; 25 L. J. Q. B. 115; Kilgour v. Gaddes, 1904, 1 K. B. 457, 461; 73 L. J. K. B. 233; Hyman y. Van Ben Bergh, sup.
(l) See Parker v. Mitchell, (1840) 11 A. & E. 788; 9 L. J. N. S. Q. B. 194; Flight v. Thomas, (1841) 8 C. & F. 231; 3 P. & D. 442; Lowe v. Carpenter, (1851) 6 Ex. 825; 20 L. J. Ex. 374; Tilbury v. Silva, (1890) 45 Ch. D. 98; 63 L. T. 141.
(m) Per Cozens-hardy, M. R., in Hyman v. Van Den Bergh, 1908, 1 Ch. p. 171.
(n) See Bright v. Walker, (1834) 1 C. M. & R. at p. 219; 3 L. J. N. S. Ex. 250; Tickle v. Brown, (1830) 4 A. &; E. 369; 5 L. J. N. S. Q. B. 119; Partridge v. Scott, (1838) 3 M. & W. 220; Winship v. Hudspeth, (1854) 10 Ex. 5; 23 L. J. Ex. 268; Tomsett v. Wallis, (1896) 40 Sol. J. 498; Gardner v. Hodgson's Breweries, 1903, A. C. 229; 72 L. J. Ch. 558; Hyman v. Van Den Bergh, 1,907, 2 Ch. p. 530. As to the rights of reversioners, see Beggan v. Mcdonald, (1878) 2 L. R. Ir. 560; Laird v. Briggs, (1881) 19 Ch. D. 22; 45 L. T. 238.
(o) Hollins v. Verney, (1884) 13 Q. B. D. 304; 53 L. J. Q. B. 430; Creyke v. Level of Hatfield Chase, (1896) 12 T. L. R. 383.
(p) Tone v. Preston, (1883) 24 Ch. D. 739; 53 L. J. Ch. 50; Barry v. Lowry, (1877) 11 I. R. C. L. 483.
(q) Onley v. Gardiner, (1838) 4 M. & W. 500; 8 L. J. Ex. 102; Clayton v. Corby, (1842) 2 Q. B. 813; Clay v. Thackrah, (1839) 9 C. & P. 47; 2 M. & Rob. 244; Battishill v. Reed, (1856) 18 C. B. 696; 25 L. J. O. P. 290; Harbidge v. Warwick, (1849) 3 Ex. 552; 18 L. J. Ex. 245; James v. Plant, (1836) 4 A. & E. at p. 761; Simper v. Foley, (1862) 2 J. & H. 555; 5 L. T. 669; Damper v. Bassett, 1901, 2 Ch. 350; 70 L. J. Ch. 657. As to the non-extinguishment of a necessary easement by unity of seisin, see Pheysey v. Vicary, (1847) 16 M. & W. 484; 8 L. T. (O. S.) 451. Compare on this point Ladyman v. Grave, (1871) 6 Ch. 763; 25 L. T. 52; and Outram v. Maude, (1881) 17 Ch. D. 391; 50 L. J. Ch. 783.
By interruption is meant an adverse obstruction, and not a mere discontinuance of user (r); but the question whether a discontinuance was voluntary or otherwise, is one for a jury (s); and though interruptions for less than a year will not in themselves prevent the operation of the Statute, yet they have a material bearing upon the question whether the enjoyment has, in fact, been "as of right" (t); and an interruption by a stranger is within the Act (u). As between vendor and purchaser, therefore, it would seem to be necessary to give evidence of (so near as may be) continuous user (x). Under 8. 4, which provides that no act shall be deemed an interruption, unless submitted to or acquiesced in for one year, a party who has uninterruptedly enjoyed or used the easement or right for any period exceeding one year short of the term which would be sufficient to confer a statutory, title, can, upon being disturbed in his enjoyment or user at any time within the last year of the statutory term, claim the benefit of the Statute (y), but the Court will not interfere by injunction to protect such right before the full period has elapsed (z).